Ohio employers can fire workers who use medical marijuana

Friday

Ohio employers can fire employees who use medical marijuana or refuse to hire them in the first place.

Medical marijuana is legal in Ohio, but it remains illegal at the federal level and Ohio employers are testing for it like they would any other illegal drug.

“Under Ohio law, employers don’t have to currently hire someone who uses medical marijuana and they don’t have to retain an employee that tests positive for medical marijuana,” said Michael Griffaton, an attorney at Vorys, Sater, Seymour and Pease LLP.

Employees can’t sue their employers for taking action based on medical marijuana use, and employees fired under workplace drug testing or drug-free workplace policies are ineligible for unemployment benefits.

“There’s nothing that requires an employer to tolerate an employee using medical marijuana in the workplace. Nothing,” said Sharon DeLay, owner and president of the human-resources firm GO-HR. “At this point, an employer can terminate an employee for testing positive for medical marijuana even if that employee is using it for something like glaucoma or cancer treatment."

In particular, employees working warehouse or transportation jobs can’t use medical marijuana, she said.

“If they make one wrong move judgment-wise because maybe they’re not thinking clearly ... you’ve got tremendous safety issues to think about,” said DeLay, who also is treasurer of the Human Resources Association of Central Ohio.

An employee is prohibited from working on a federal contract if they test positive for any drug, including medical marijuana.

“I’ve talked to several of our employers, and they acknowledge the value of medical marijuana and what it can do for chronic illnesses and what it can do for people suffering through things as horrendous as cancer ... but they also have to make sure they don’t lose business because of contract requirements,” DeLay said. “They don’t want to risk one employee’s safety so another employee can work comfortably.”

Medical marijuana was legalized in Ohio on Sept. 8, 2016, through House Bill 523. Ohio’s medical marijuana sales started Jan. 16 at the CY+ dispensary in Wintersville, in northeastern Ohio, and three other dispensaries. Statewide sales totaled $8 million through May 25, with 991 pounds of plant material sold. Tinctures (liquid extract) hit dispensary shelves April 3.

Every company has different drug rules. Some subscribe to a zero tolerance-policy, meaning a person would be terminated immediately if he or she tested positive for marijuana.

Others are less strict.

“They might look at how much of the drug was in the system; they may look at what the drug was; they might talk to the employee; they may require the employee to do some sort of counseling before they go back to work; but they wouldn’t necessarily be terminated,” DeLay said.

Employers need to take a stance on medical marijuana, communicate it to their employees and enforce their policy, said Dyann McDowell, Training Marbles Inc. president and training consultant. Ohio law gives employers the right to follow federal law, she said.

“There are just so many issues and so much confusion and it’s making a lot of law firms busy,” DeLay said. “It’s making a lot of employers have headaches, a lot of headaches.”

The Massachusetts Supreme Judicial Court ruled in 2017 that an employee can pursue a disability discrimination claim under state law against a former employer for not accommodating an employee’s use of medical marijuana. The Superior Court of Rhode Island ruled in 2017 that an employer can’t refuse to hire a potential employee because the employee could fail a pre-employment drug test because he or she uses medical marijuana.

Using medical marijuana for one of the 21 qualifying conditions in Ohio is not the same as taking medication prescribed by a doctor, McDowell said.

“The difference is that the medication someone would be otherwise taking is legal ... at the end of the day, marijuana is not legal,” she said.

Questions arise, Griffaton said, when an employee tests positive for medical marijuana but does not appear to be impaired at work.

“I think that’s going to depend on the employer,” Griffaton said. “If you have an employer that has safety-sensitive positions, then it’s going to be a very strict no tolerance policy.”

Never miss a story

Choose the plan that's right for you.
Digital access or digital and print delivery.